Oaks was being held in a secure county jail before being taken by his custodian to the courthouse for an appearance on felony charges of evading arrest, felony reckless endangerment, attempted aggravated robbery, theft over $500.00 and aggravated burglary. Obviously the courtroom is not as secure as the county jail, but I am hard pressed to imagine an individual who is “significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a ‘serious potential risk of physical injury,’” than someone who flees from law enforcement custody during an appearance in a matter in which he is facing felony charges.

This is perhaps the dog-gonest case ever to reach a federal appellate court. In October 2008, several uniformed officers of the Louisville Metro Animal Services (LMAS) intruded into the O’Neills’ home without a warrant and without consent, confiscated the O’Neills’ two adult dogs and the dogs’ litter of seven puppies, neutered and spayed the adult dogs and implanted microchips in all nine animals, and then required the O’Neills to pay over $1,000 to retrieve them, all without any formal charges ever being lodged against the O’Neills.

The district court dismissed all of the O’Neills’ constitutional and state-law claims arising out of this incident, concluding that the O’Neills were operating an unlicensed Class A kennel in violation of the City’s animal-control ordinance, and that none of their constitutional or state-law claims had merit. For the reasons set forth below, we reinstate the majority of the O’Neills’ claims and remand the case for further proceedings consistent with this opinion.

One of the issues dividing the Sixth Circuit panel was whether the trial court properly handled the juror’s improper conduct and, specifically, whether the prosecution or the defense should bear the burden of proof in such a situation. Judge Kethledge, writing for the court joined by Chief Judge Batchelder (who also wrote a separate concurrence addressing this issue), concluded that the burden was on the defense to prove prejudice. Judge Merritt, in dissent, forcefully argued the burden must rest on the prosecution.

Judge Merritt argued that the burden was on the proscecution to prove that the juror’s conversation with the psychologist was not prejudicial, and that this burden was never met.  In support of his position, Judge Merritt cited the Supreme Court’s decision in Remmer v. United States, 347 U.S. 227, 229 (1954), in which the Court held that ex parte communications with jurors are “presumptively prejudicial. The majority, on the hand, concluded that Remmer had been abrogated by subsequent decisions, including Smith v. Phillips, 455 U.S. 209, 215-17 (1982), a point Chief Judge Batchelder stressed in her concurrence.

I don’t know the case law in this area to know which side offers the better interpretation of the Supreme Court’s precedent or how such ex parte communications should be handled. The dissent notes that the majority of Circuit’s reject the view that Smith abrogated Remmer, and the majority of circuits may be right. Only one circuit disagrees — but therein lies the problem for Judge Merritt’s argument. As he acknowledges in footnote 1 of his opinion, that one circuit is the Sixth. The circuit concluded Smith abrogated Remmer in United States v. Pennell, 737 F.2d 521 (6th Cir. 1984). Moreover, as Judge Batchelder notes, the Sixth Circuit has followed this holding since. Therefore, even if Judge Merritt offers what is ultimately the better argument, the panel was bound to conclude otherwise, as this is the law of the circuit unless and until the question is revisited en banc or reaches the Supreme Court.

Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” Judge Gibbons dissented.

The outcome of this case will be interesting, particularly because the Sixth Circuit remains closely divided along ideological lines.  Moreover, as Whelan reports, two members of  the court, Judges McKeague and Kethledge — two Bush appointees from Michigan — have recused themselves from the case.  I’ll also venture a further prediction: If the original panel is upheld, this case will go to the Supreme Court, where Justice Kennedy will decide the Michigan Civil Rights Initiative’s fate.

UPDATE: The Detroit Free Press reports here.

Excerpts from the opinions are below the jump.

Judge Daughtrey’s majority opinion in Stumpf v. Houk, joined by Judge Moore, begins:

Recent polling results and statistical compilations support many of the economic and penological arguments that have long been raised in opposition to the imposition of the death penalty in the United States. Other statistics bolster objections to a form of punishment that, possibly because of its finality, has been shown to have been misdirected. Such polemical discussions, while interesting, are, however, better suited for the deliberations in the chambers of our state and national legislatures. In this appeal, we are not asked to involve ourselves in those debates, or even in a discussion of the constitutionality of the death penalty. Instead, we are required to examine only the constitutional ramifications of court proceedings that are alleged to have infringed John David Stumpf’s right to be sentenced in accordance with longstanding principles of due process and fundamental fairness. We conclude that those principles were violated by the state in seeking to execute Stumpf even after it became clear that the basis for the imposition of the death penalty had been seriously compromised in the subsequent prosecution of Stumpf’s accomplice, as further explained below. Indeed, the facts of this case exemplify the arbitrariness that prior decisions of the United States Supreme Court and of this court have decried as violative of fundamental constitutional safeguards. As a result, we once again reverse the judgment of the district court and remand this matter for issuance of a writ of habeas corpus, unless the State of Ohio conducts a new sentencing hearing for Stumpf within 90 days of the issuance of this opinion.

The opinion’s conclusion reads, in part:

we conclude that Stumpf’s due process rights were violated by the prosecution’s arguments leaving the impression with Stumpf’s sentencers that the petitioner was the principal offender in the murder of Mrs. Stout, even though the state had evidence and a belief that co-defendant Wesley was actually the triggerman in Mrs. Stout’s murder. Because all indications are that the three-judge panel that sentenced Stumpf to death would not have done so had the state not persisted in its efforts at duplicity, we also hold that the petitioner was prejudiced by that constitutional violation.

Judge Boggs forceful dissent begins:

The majority has resurrected a new substantive right of their own invention, which made its first appearance in Stumpf v. Mitchell, 367 F.3d 594 (6th Cir. 2004), vacated by Bradshaw v. Stumpf, 545 U.S. 175 (2005), and apparently had all along been lurking somewhere within the Fourteenth Amendment. In its current iteration, the new right protects a convicted murderer from being sentenced to death where mitigating evidence (i.e., evidence that does not undermine the murder conviction itself but that might have counseled towards a more lenient sentence) discovered after sentencing is later used by the prosecution against a different defendant. Notably, the due process violation is not that mitigating evidence exists that is later discovered, which would not by itself offend the Constitution, [citations omitted] but, curiously, that the newly discovered evidence is later used by the prosecution against a different defendant. Somehow, that purely later conduct retroactively renders the earlier sentence unconstitutional.

Consider a hypothetical case. B is killed in a horrifying fashion. A is tried for the murder of B, is convicted, and due to the terrible nature of the crime, is sentenced to death. A’s trial is not merely in compliance with constitutional standards, but is a model trial. The most scrutinizing criminal lawyers available comb through the trial record in search of some plausible legal claim to bring on appeal, but they find nothing, and A’s sentence is correctly affirmed on direct review. The majority’s new right has no import at this time. Many years later, a witness comes forward with new information—the witness explains that C and A killed B in concert, and that C’s conduct was more vile. Still, the majority’s new right has no import. But wait—the prosecutor acts on the witness’s testimony and tries C for B’s murder, arguing that, even though A was already convicted of the murder, it was in fact C that committed the most horrifying aspects of the crime. Sure, the jury acquits C, but that is apparently besides the point. Now, the majority’s new right finally jumps into action. The prosecutor in C’s trial has denied A—yes, A—the right to be sentenced fairly, in violation of the Due Process Clause of the Fourteenth Amendment.

I do not agree with that application of the Constitution in the slightest, and as I explained in my first dissent in this case, I believe that the out-of-circuit cases that the majority relies upon for its new rule are readily distinguishable. Stumpf v. Mitchell, 367 F.3d at 618–22 (Boggs, J., dissenting). I would therefore affirm the decision of the district court dismissing Stumpf’s petition for a writ of habeas corpus.

I am quite confident this is not the last we have heard of this case, and will be quite surprised if this decision is ultimately sustained. Given the panel and the holding, I think there is a reasonable likelihood of it going en banc, and if this opinion is not overturned en banc, I would think that this case — or perhaps the similar case challenging the equivalent California initiative — will go to the Supreme Court.

UPDATE: According to this story, Michigan Attorney General Bill Schuette will file a petition for rehearing en banc.

Judge Martin’s opinion provoked a forceful dissent from Judge Rogers. Here is how begins:

Today the court allows habeas petitioners to prevent States from enforcing their judgments, potentially forever, on the grounds of a nonexistent right to competency in habeas proceedings. The asserted right has no basis in the Constitution or federal statutes. Civil suits can be brought by lawyers representing mentally incompetent plaintiffs, and habeas cases are no different. Nor are capital cases different in this respect.

In the concluding section, Judge Rogers writes:

Requiring competency on the part of capital habeas petitioners is not compelled by the right to competency at trial, the right to competency in waiving further habeas proceedings, or the right to be competent at the time of execution. The new ‘right’ is not provided by either the Constitution or any statute. It is instead an anomalous monkey wrench thrown into the capital-litigation process.

One point Judge Rogers stresses is the potential for the majority’s holding to create odd incentives and produce perverse results.

For practical purposes, the right will be asserted by capital petitioners but not by other petitioners. Capital petitioners gain something (delaying execution) from indefinitely delaying habeas proceedings, while the interests of convicts serving prison terms—whether competent or not—will almost always be served by the prompt litigation of habeas petitions, so as to advance the possibility of release. But acceptance of the right in concept might well require that it be applied to noncapital cases, where prosecutors could insist that habeas be indefinitely delayed. One might argue that noncapital defendants may waive the right, but by hypothesis such defendants are incompetent, and thus might be incapable of waiving the right. So recognition of a right to competency in habeas proceedings means either that prosecutors can for practical purposes insist on indefinite postponement of habeas proceedings where convicts are not competent (a counterintuitive result), or that the difference in punishment—capital vs. noncapital—somehow fundamentally changes the nature of how much a lawyer must have input from the client, such that the right is categorically available only for capital convicts (an anomalous result).

It is also anololous to have a system in which a civil litigant can go into court and instantly get the relief he seeks merely by showing that he is incompetent. In civil cases in our system, a plaintiff has to show a basis for relief, not merely that he is disable from making such a showing. While habeas convictions deal with criminal convictions, they are at bottom civil cases.

Given the Sixth Circuit’s recent record in habeas cases, I would not be surprised were the state of Ohio to file a petition for certiorari in this case. Douglas Berman agrees.

Case in point is today’s decision in Hardaway v. Robinson. Holland Hardaway was convicted of murder and given consecutive 40 to 80 year prison terms. Hardaway filed a habeas petition to challenge his conviction alleging, among other things, the ineffective assistance of counsel. Hardaway drew a fairly conservative panel — Judges Batchelder, Rogers and Kethledge. This would doom his ineffective assistance claim, right? Not in this case. In an opinion by Judge Rogers, the panel unanimously concluded that Hardaway had been denied the effective assistance of counsel, and that this violation was not cured by Hardaway’s subsequent ability to challenge his conviction in collateral state proceedings.

[Thanks to Professor Kent Barnett for the tip.]

What’s causing the Sixth Circuit’s poor record?  I am reluctant to read too much into the numbers, as it could be just dumb luck.  The Supreme Court reverses more often than it affirms lower court opinions, and the number of cases is small enough that it’s not clear they establish a trend.  That said, I would offer some observations:

• Some of the judges on the Sixth Circuit are unquestionably out-of-step with the Supreme Court on habeas review, and this likely accounts for the high number of recent reversals in habeas cases.
• The lack of collegiality among a handful of the judges on the Sixth Circuit likely plays a role as well.  It’s not just that some of the judges on the court don’t work well together.  Rather, it is clear that some of the judges do not trust all of their colleagues — some have said as much in print — and this lack of trust could make it more difficult to resolve disagreements about what existing law requires in specific cases.  These sorts of discussions require that the participants believe all are operating in good faith.

If I am correct, then I would expect the Sixth Circuit’s record to improve in the years ahead.  There’s only so long that a Circuit (or judges on a Circuit) can resist Supreme Court precedent, and the confirmation of new judges to the Sixth will help breakdown any bad feelings amongst some of the more senior judges on the court.

The opinion by Judge Sutton, which whom Judge Kethledge, declares up front that “with all respect to the panel majority, this case was not decided correctly,” and proceeds to explain the initial panel’s mistake.  The second part of Judge Sutton’s opinion,however, explains that a three-judge panel’s error, by itself, does not justify en banc review.  As he explains:

While the Federal Rules of Appellate Procedure provide one option—en banc rehearing—it is not a preferred one.  En banc rehearing is “not favored and ordinarily will not be ordered.” Fed. R. App. P. 35(a).  “The decision to grant en banc consideration is unquestionably among the most serious non-merits determinations an appellate court can make, because it may have the effect of vacating a panel opinion that is the product of a substantial expenditure of time and effort by three judges and numerous counsel.  Such a determination should be made only in the most compelling circumstances.” . . .

Most of the traditional grounds for full court review are not “compelling” here. There is no circuit split.  No other circuit to my knowledge (or for that matter to the parties’ knowledge) has invoked this ground for relief or otherwise disagreed with it. This is not an important federal question, at least under Appellate Rule 35(a), since the Ohio courts stopped giving this instruction in 1996.  . . .  There is no intra-circuit conflict. . . . Nor is this a case in which a large number of judges on the court have come to doubt the validity of our own precedent.

That leaves one other possibility—that disagreement with the panel’s decision on the merits warrants en banc review.  In the run-of-the-mine case that ground rarely suffices, else many cases a year would be decided in panels of 16, a rarely satisfying, often unproductive, always inefficient process.  No one thinks a vote against rehearing en banc is an endorsement of a panel decision, as other judges have said and as my explanation in this case confirms.  “By declining to rehear a case, we do not sit in judgment on the panel; we do not sanction the result it reached . . . [w]e decide merely that . . . review by the full court is not justified.” . . .

If the goal is to produce consistent and principled circuit law, moreover, it is fair to wonder whether a process that requires a majority of circuit judges to sit in judgment of two or three colleagues does more to help than to deter that objective, particularly when the central ground for review is mere disagreement on the merits.  The judges of a circuit not only share the same title, pay and terms of office, but they also agree to follow the same judicial oath, making them all equally susceptible to error and making it odd to think of the delegation of decisionmaking authority to panels of three as nothing more than an audition.  Saving en banc  review for “the rarest of circumstances,” particularly when the leading ground for review is disagreement on the merits, thus “reflects a sound, collegial attitude,” one worth following here. . . .  Skepticism about the value of meritsbased en banc review reflects one other thing:  We are not the only Article III judges concerned with deciding cases correctly.  Sometimes there is nothing wrong with letting the United States Supreme Court decide whether a decision is correct and, if not, whether it is worthy of correction.

A state under current law may curtail a felon’s right to vote, or even forever deny it, but once a state enacts a process by which a felon may regain suffrage, that process must comport with the demands of the Constitution. Contrary to the majority’s conclusion, I would hold that Tennessee Code § 40-29-202(b) and (c) violate the Equal Protection Clause of the U.S. Constitution and the Ex Post Facto Clause of the Tennessee Constitution. I further believe that the Plaintiffs have alleged sufficient factual matter to state a claim for relief under the Twenty-Fourth Amendment to the U.S. Constitution such that dismissal on the pleadings was improper. For the following reasons, I must respectfully dissent.

Tennessee Code § 2-19-143 and § 40-20-112 disenfranchise all persons who have been convicted of “infamous” crimes, i.e., felonies. Those felons denied the right to vote are “eligible to apply for a voter registration card and have the right of suffrage restored” if they receive a pardon, are discharged from custody after serving the maximum sentence imposed, or are granted a final discharge from supervision by the relevant county, state, or federal authority. Tenn. Code Ann. § 40-29-202(a)(1)–(3) (2006).  Notwithstanding this provision, however, there are two pecuniary preconditions to reenfranchisement: “[A] person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person has paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence,” id. § 40-29- 202(b), and “unless the person is current in all child support obligations,” id. § 40-29- 202(c). Prior to 2006, felons adjudged to have committed infamous crimes were eligible to vote upon the completion of their sentences despite any outstanding financial obligations.

In the instant case, the Plaintiffs are individuals who have completed the imprisonment associated with the felonies for which the State was authorized to abridge their right to vote. Yet because of their inability to pay outstanding restitution and/or child-support arrears, the State continues to deny them the right of suffrage to which they otherwise would be entitled automatically were the law the same now as it was at the time of their convictions and initial disenfranchisement. It is indisputable that the Plaintiffs are now unable to access the ballot box simply because they are too poor to pay.

As for why the Supreme Court suddenly became interested in 6th Circuit habeas rulings, court-watchers say part of the reason is that Michigan Solicitor General Eric Restuccia went to great lengths to flag the issue in his briefs. Of the five 6th Circuit habeas cases decided this term, three were out of Michigan.

In five briefs filed last year, Restuccia mentioned the other petitions he was filing in an attempt to highlight the failure of the 6th Circuit to follow habeas corpus rules as revised by Congress in the Antiterrorism and Effective Death Penalty Act back in 1996.

“These cases evidence a pattern by the 6th Circuit of usurping the role of the State courts by failing to properly apply the AEDPA,” he wrote in a passage that appeared in all five briefs.

Joy Yearout, a spokeswoman for the Michigan Attorney General’s office, said Thursday that the state is “going to keep filing petitions as long as the 6th Circuit continues its pattern of failure to accord proper deference to state court determinations.”

One has already been filed and another will be filed in the coming weeks, she added.

The Michigan AG’s office is not alone.  Prosecutors within the Sixth Circuit are well aware that some of the Circuit’s judges are out-of-step with existing Supreme Court precedent on habeas.  Now that the Supreme Court appears to be aware of this as well, I would expect state AGs to become increasingly aggressive at seeking review of decisions granting habeas petitions.

(Hat tip: How Appealing)

It’s hardly unheard of for a single circuit to be reversed five or more times in a single term.  The number of cases up for review in any given year is a sufficiently small and unrepresentative sample to preclude drawing any sweeping conclusions.  Still, it is unusual to see a circuit fare so poorly in a single area of the law in a single term, and in such a uniform direction.

The spate of reversals is also notable because the Sixth Circuit has been so divided in habeas cases of late.  As I’ve chronicled over the past several years (see, e.g., here, here and here), the judges on the Sixth Circuit are deeply split over the proper standard of review in habeas cases, particularly when the death penalty is involved.  Indeed, the Circuit released yet another divided panel decisionin a habeas case this morning.   The uniformity of the reversals suggest that one side in the Sixth Circuit’s habeas disputes has the better of the argument, at least under existing law.  If current law is too restrictive on this score — and it may well be — then it is up to the Court or Congress to make things right, not a handful of judges on a single Circuit.  With these five decisions, the Supreme Court seems to be sending a message.  Time will tell whether the judges on the Sixth Circuit heed it.

UPDATE: It’s been suggested to me that it’s unfair to blame the Sixth Circuit for today’s reversal.  In Berghuis v. Thompkins the Sixth Circuit was not only reversed for failing to apply the proper standard to review of a habeas petition denial.  On the petitioner’s Miranda claim, the five-justice majority revised the standard for what constitutes a waiver of one’s Miranda rights. Thus, the Court did not hold that the Sixth Circuit failed to apply pre-existing precedent, and there is a reasonable argument that the Sixth Circuit’s decision on this question was on solid ground at the time of the decision.  This was not the only basis upon which the Sixth Circuit afforded Thompkins with habeas relief, however.  The panel below also found that Thompkins had received inadequate assistance of counsel, and here the Court majority found the Sixth Circuit had not applied the proper standard under AEDPA.  (The dissent did not address this issue, as the dissenting justices would have granted relief on the Miranda claim.)  Interestingly enough, because today’s decision was 5-4, if one ignores Berghuis v. Thompkins, the Sixth Circuit appears to be more of an outlier, as the combined vote to overturn is habeas decisions would be 33-3.

This case requires us to review the grant of a writ of habeas corpus to a state prisoner under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d). The District Court in this case issued the writ to respondent Reginald Lett on the ground that his Michigan murder conviction violated the Double Jeop-ardy Clause of the Constitution, and the U. S. Court of Appeals for the Sixth Circuit affirmed. In doing so, how-ever, these courts misapplied AEDPA’s deferential standard of review. Because we conclude that the Michigan Supreme Court’s application of federal law was not unreasonable, we reverse.

Justice Stevens dissented, joined by Justice Sotomayor in full and Justice Breyer in part.

Of note, this is the fourth  reversal of a Sixth Circuit decision granting a prisoner’s habeas petition this term.  The other three were Berghuis v. Smith, Smith v. Spisak and Bobby v. Van Hook.  One more Sixth Circuit habeas case remains, Berghuis v. Thompkins.  Will the Supreme Court reverse in all five?  We’ll see.

The majority today extends to shoeboxes a degree of Fourth Amendment protection that our court has previously afforded to luggage. I agree that our precedents permit this extension, but I do not think they compel it. I dissent because I think the extension unwise.

The apartment’s tenant here gave consent for the officers to search it. I think that consent ought to be effective as to an unsecured container on the premises, absent a clear indication that some other person exclusively controls the container. Luggage might routinely meet that test, but shoeboxes I think should not, absent some unusual circumstance not present here. It should take more than a shoebox to vitiate a resident’s consent to search the premises.

Of note, this is the third reversal of a Sixth Circuit decision granting a crminal defendant’s habeas petition this term.  The first two were Smith v. Spisak and Bobby v. Van Hook.  Two more Sixth Circuit habeas cases remain, Renico v. Lett and Berghuis v. Thompkins.  As I noted here, in all five cases, the Sixth Circuit granted the habeas petition.  Will the Supreme Court reverse in all five?  We’ll see.  Three down, two to go.

UPDATE: LAst August, Jess Bravin had this piece on Justice O’Connor’s continuing service on the appellate bench.

All nine justices agreed that even if Spisak’s trial counsel had been ineffective at the penalty phase, there was no reasonable probability that he was prejudiced by this fact.  The Court also held that the trial court’s mitigation jury instructions did not violate clearly established Federal law. Justice Stevens disagreed on this latter point, but nonetheless concluded Spisak was not entitled to relief because his conduct had so “alienated and ostracized the jury, and his crimes were monstrous” that there was no reasonable probability of a different outcome.

This is the second reversal of a Sixth Circuit decision granting a habeas petition this term.  (The first was Bobby v. Van Hook.)  Three more Sixth Circuit habeas cases remain, Renico v. Lett, Berghuis v. Thompkins, and Berghuis v. Smith.  Of note, all five cases involve the review of pro-defendant appellate decisions.

I previously blogged on the Spisak case here.

[NOTE: As initially posted, I inadvertantly omitted one of the cases.]

Judge Kethledge dissented from the court’s judgment.  His dissenting opinion begins:

In defending a murder charge, it is a bad idea, I think, to leave the judge with a smoldering suspicion that your client had a role in killing two of the prosecution’s key witnesses before trial. A lawyer who minimizes that danger—by consenting to, rather than fighting, closure of the courtroom during the testimony of three surviving witnesses, out of a total of 18 testifying witnesses in the case—does not thereby render constitutionally ineffective assistance of counsel. That is all the more true, in my opinion, when there is not a shred of evidence that the closure had the slightest effect on the trial’s outcome.

The majority concludes otherwise. The majority suggests that the closure fight here was one worth having—indeed, that it was constitutionally mandated—its ethereal upside and concrete downside notwithstanding. The majority then sidesteps the absence of any actual prejudice resulting from Johnson’s consent to the closure—and with it, the plainly stated actual-prejudice requirement of Strickland v. Washington, 466 U.S. 668 (1984)—by holding that Johnson need not show any prejudice at all in support of his ineffective-assistance-of-counsel claim. That holding is not supported by “clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), which means that we are without power to impose it on the Michigan state courts in this habeas case. I respectfully dissent.

It seems to me the majority’s opinion is a bit of a stretch, and Judge Kethledge has the better of the argument under existing law.  The Supreme Court has been anything-but-bashful in reviewing alleged ineffective assistance of counsel claims of late.  (See, for instance, today’s per curiam opinion in Wong v. Belmontes and last week’s decision in Bobby v. Van Hook.) So, even though this is not a capital case, I would not be surprised were this case reversed en banc if not by the Supreme Court.

One reason for the lack of sanctions may be that the threat of sanctions could discourage attorneys from representing capital defendants, making it more difficult for them to get proficient counsel.  On the other hand, I have also heard it claimed that the low likelihood of sanctions gives defense attorneys an incentive to “tank” bad cases, such as by providing sub-par performance at the penalty phase after losing at the guilt phase, so as to plant grounds for appeal. Such conduct would be worthy of sanction for sure, but I don’t know how often it occurs, if at all.  But what of shoddy or negligent legal work?  Should that be sanctionable too?

Yesterday the U.S. Court of Appeals for the Sixth Circuit decided Johnson v. Mitchell, an appeal from a district court’s denial of habeas relief for convicted murderer Gary Van Johnson. The three-judge panel, in an opinion by Judge Martha Craig Daughtrey, denied six of Johnson’s seven claims, yet granted relief on an ineffective assistance claim. Based on the facts described by the Court, if there’s a case in which a lawyer should be sanctioned for inadequate assistance, this would be it.

The key facts are these.  Johnson was initially convicted in 1983 and sentenced to death.  A new attorney represented Johnson on appeal, arguing (among other things) that Johnson had received ineffective assistance of counsel during the penalty phase of his trial.  Specifically, Johnson’s initial attorney had failed to investigate Johnson’s background for potential mitigation evidence that could be presented to the jury.  The Ohio Supreme Court agreed, vacated Johnson’s sentence and ordered a new trial.

Johnson’s new attorney — the one who had successfully argued that Johnson’s initial representation was constitutionally inadequate — represented Johnson in the new trial.  Johnson was convicted and, once again, was sentenced to death.  Here is where it gets ugly.  For Johnson’s new attorney made the precise same error as his initial attorney: He made no effort whatsoever to find potential mitigation evidence for the penalty phase of the trial.   Thus, Johnson once again received ineffective assistance of counsel.  Indeed, according to the Sixth Circuit, Johnson’s representation the second time around was “more egregiously deficient” than in most prior cases.

The same attorney who secured that favorable decision from the Ohio Supreme Court, James Willis, also represented Johnson at the retrial. But, after arguing successfully that Johnson’s original attorney had been constitutionally ineffective in failing to present available mitigating evidence at the penalty phase of the proceedings, Willis himself committed the same grievous error. He introduced no mitigating evidence at the penalty phase of the second trial, instead relying solely upon Johnson’s unsworn statement to the jury, a statement in which the petitioner chastised the finders-of-fact at length for failing to find a reasonable doubt as to his guilt despite what he alleged were numerous weaknesses in the prosecution’s case.

In a series of affidavits submitted to the Ohio state courts in post-conviction proceedings, Willis admitted that his sole preparation for Johnson’s capital murder trial consisted of reading the transcript of the petitioner’s first trial – a trial that had resulted in convictions for aggravated murder and aggravated robbery, as well as a sentence of death – and speaking with Johnson himself. . . .

The petitioner’s counsel at his second trial reviewed the transcript of the first trial, noted the ineffective assistance provided by Johnson’s original attorney, and convinced the Ohio state courts that it violated constitutional standards of representation. Nevertheless, prior to and during Johnson’s second trial, attorney Willis admittedly interviewed no new or old witnesses, did not request or hire an investigator for the second trial, “felt there was no need for any new investigation into Gary Johnson’s case,” did not seek any discovery prior to the second trial, and presented no evidence in mitigation at the second trial. Thus, in effect, Willis merely replayed the disastrous initial trial a second time. Not surprisingly, the same result followed, and Johnson was once again sentenced to die at the hands of the state for his crimes.

What is particularly striking about this case is that Johnson’s attorney knew that the failure to investigate Johnson’s background constituted ineffective assistance of counsel, and could be grounds for a new trial.  So the only question was whether the attorney’s deficient representation was a product of incompetence or design.  Either way, Johnson should not suffer for his attorney’s malfeasance.  The attorney, on the other hand, should be subject to sanction.

The law at issue was part of the Adam Walsh Child Protection and Safety Act of 2006.  The Supreme Court already has one case this term concerning this law (United States v. Comstock).  Could this make for a second?

UPDATE: I have a PDF of the closing argument in the mitigation phase  but I’m having trouble posting it.  Check back to see if I’ve figured it out.  Here is a PDF of the full closing from the mitigation phase of the trial.

Meanwhile, here’s an early report on the oral argument.

UPDATE: Here’s the transcript.